Legislating Hate

Published December 14, 2007, issue of December 14, 2007.
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Congress failed an important test last week when it flubbed its latest effort to enact a new, stronger federal hate-crimes law. The measure would have given gays the same anti-bias protection enjoyed by blacks and Jews. Named for Matthew Shepard, a gay man beaten to death by bigots in Wyoming in 1998, it has been introduced in Congress every year since 1999. Each time, to America’s shame, it has fallen short.

The latest misfire, though, was one failure too far. In past years the Shepard bill, authored by Massachusetts Senator Ted Kennedy, has been blocked by conservatives who habitually oppose most civil rights measures, especially gay rights. But this year, the bill had enough votes to pass in both houses of Congress. It failed because the majority Democrats, shell-shocked from their repeated failures to outvote the Republican minority, concocted a complex strategy for ensuring victory — and ended up outmaneuvering themselves.

The existing federal hate-crimes law, enacted in 1969, allows the federal government to prosecute anyone who “injures, intimidates or interferes with” a person because of “race, color, religion or national origin” — as long as the victim was engaged at the time in a “federally protected” action, such as voting or going to school. Coming on the heels of the strife-torn Civil Rights Era, the 1969 measure deliberately federalized ordinary acts of violence when they were meant to thwart the national goal of equal rights for all.

Kennedy’s measure would go further and add sexual orientation — currently about one-sixth of all hate crimes — to the list of protected categories. It also would drop the requirement that the victim be engaged in a “federally protected” activity. That would make it easier for the feds to step in. Both changes are long overdue.

The bill is opposed by a coalition of conservatives of various stripes: religious conservatives, who oppose legal protections for gays, and right-wing legalists who oppose the entire notion of hate crimes. To the religious right, protection for gays is tantamount to approval of homosexuality — and, in their view, infringes on their right to denounce homosexuality as sin.

In this, they’re wrong. The bill specifically protects their First Amendment right to speak for or against anyone’s rights. It only targets anti-gay violence, not thoughts.

In-principle opponents of hate-crimes laws argue on civil liberties grounds, claiming that singling out bias-motivated crimes for special treatment amounts to criminalizing thought. Criminals should be judged by their actions, they say. Judging individuals’ motivations should be off-limits in a democracy.

This line of thinking has gained popularity as part of the larger package of post-1960s backlash conservatism. But the theory doesn’t stand up to scrutiny. Intent and motivation are essential to criminal justice. If they weren’t, there would be no difference between first-degree murder and accidental manslaughter. Indeed, the late chief justice William Rehnquist, no liberal himself, wrote in 1994 that singling out hate crimes is legitimate because “this conduct is thought to inflict greater individual and societal harm… bias-motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest.”

Congressional Democrats and moderate Republicans have tried repeatedly, without success, to enact the broader law. Up to now they could blame the Republican right. This year, there were no excuses.

The House passed the Shepard Act handily in May. Senate Democrats had the votes, too. But fearing a filibuster, they decided to attach the measure to the massive Defense Authorization Bill, figuring conservatives couldn’t vote no. It did indeed pass the Senate, but now the House had trouble.

Conservative hardliners threatened to sink the entire defense budget because of hate crimes. Hard-core liberals wouldn’t back any defense bill, hate crimes or no. In the end, the Democratic leadership had to drop the hate-crimes amendment in order to get the Pentagon its funds. Now it’s dead for another year.

Eight years into the 21st century, it is nothing less than appalling that America’s highest lawmaking body cannot manage to call violent bigotry by its name.

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